Citation Nr: 0113447
Decision Date: 05/11/01 Archive Date: 05/15/01
DOCKET NO. 00-21 619 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Seattle, Washington
THE ISSUE
Whether a timely notice of disagreement with a September 1998
RO decision assigning an effective date of January 27, 1998,
for the grant of a permanent and total disability rating for
pension purposes, was received.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Hilary L. Goodman
INTRODUCTION
The veteran had active service from October 1974 to June
1978.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision of January 2000 by the
Seattle, Washington, RO, which concluded that the veteran's
notice of disagreement with its September 1998 decision
denying an effective date prior to January 27, 1998, for the
grant of a permanent and total disability rating for pension
purposes, was not timely filed.
The veteran has pointed out that, while the statement of the
case issued by the RO in August 2000 addressed the merits of
the claim for an earlier effective date for pension benefits,
this issue was not considered in the January 2000 decision.
In reviewing the statement of the case, the Board notes that
the RO explained that the merits of the claim for an
effective date prior to January 27, 1998, for the grant of a
permanent and total disability rating for pension purposes,
were addressed in the event that the Board held that the
veteran's notice of disagreement to the RO's September 1998
decision assigning January 27, 1998, as the effective date
for that benefit, was timely filed. As the instant Board
decision affirms the RO's decision that the notice of
disagreement in question was not timely filed, there is no
remaining issue of an earlier effective date in appellate
status.
FINDINGS OF FACT
1. The veteran's claim for a permanent and total disability
rating for pension purposes was granted by rating action in
September 1998, effective from January 27, 1998; he was
notified of the decision in correspondence mailed by the RO to
him on October 19, 1998.
2. A Notice of Disagreement with the September 1998 decision
was not received within one year after notification.
CONCLUSION OF LAW
A timely filed Notice of Disagreement with a September 1998
RO decision assigning an effective date of January 27, 1998,
for the grant of a permanent and total disability rating for
pension purposes, was not received. 38 U.S.C.A. § 7105 (West
1991); 38 C.F.R. §§ 20.201, 20.301(a), 20.302(a), 20.305(b)
(2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim for claim for a permanent and total
disability rating for pension purposes was received on
January 27, 1998.
In a statement received by the RO on February 2, 1998, the
veteran requested "retroactive" pension benefits; he noted
at that time that he had been found to be totally disabled in
December 1994 by the Social Security administration (SSA).
An RO decision on September 16, 1998 granted the veteran's
claim for a permanent and total disability rating for pension
purposes, effective from the date of receipt of the veteran's
claim, January 27, 1998. The RO notified the veteran of that
decision by letter mailed on October 19, 1998.
In response to the veteran's February 1998 letter, the RO
sent a letter on October 23, 1998, informing him that he was
not entitled to retroactive pension benefits because he had
stated that he became permanently and totally disabled in
December 1994, and his claim for pension benefits was
received more than one year later, on January 27, 1998. He
was informed of his right to initiate an appeal.
In December 1998 a Declaration of Status of Dependents was
received from the veteran and he was advised in a February
19, 1999 letter from the RO that the amount of his monthly
payments of improved disability pension benefits was amended,
effective February 1, 1998, with benefits included for his
children.
The veteran, in a statement dated October 30, 1999, and date
stamped as received at the originating agency on November 12,
1999, indicated that he was disagreeing with the action taken
in the letter of February 19, 1999, as he was requesting that
his pension benefits be made effective January 1, 1998,
rather then January 27, 1998. He further argued that he was
mentally incapacitated on February 2, 1997, and that, as a
result, an earlier effective date should be assigned.
38 C.F.R. § 20.201 provides that a written communication from
a claimant or his representative expressing dissatisfaction
or disagreement with an adjudicative determination by the
agency of original jurisdiction and a desire to contest the
result will constitute a notice of disagreement. While
special wording is not required, the notice of disagreement
must be in terms which can be reasonably construed as
disagreement with that determination and a desire for
appellate review.
The notice of disagreement must be filed within one year from
the date that the agency mails notice of a determination to
the veteran and the date of mailing the letter of
notification of the determination will be presumed to be the
same as the date of that letter for purposes of determining
whether an appeal has been timely filed. 38 C.F.R. § 20.302.
However, in computing the time limit, the first day of the
specified period will be excluded and the last day included.
A response postmarked prior to expiration of the applicable
time limit will be accepted as having been timely filed.
38 C.F.R. § 20.305.
In the case of this veteran, the notice of disagreement had
to be filed by October 19, 1999, or within one year from the
date the notification letter of the effective date in
question was mailed to him. The Board parenthetically notes
that he also did not express disagreement within one year of
the RO's October 23, 1998 letter notifying him that pension
benefits retroactive to December 1994 was not warranted. The
earliest subsequent written communication received from the
veteran was the December 1998 Declaration of Status of
Dependents and this included no references to the October 19
or October 23, 1998 letters. While the veteran's statement
received on November 12, 1999, expressed disagreement with
the effective date assigned in the February 1999 award
letter, that letter notified him of an increase in the amount
of his monthly pension payment; it did not assign a different
effective date. The veteran was informed of the effective
date of January 27, 1998, by a letter sent by the RO to him
on October 19, 1998, and he did not express disagreement with
the effective date until more than one year after notice was
sent.
As noted above, the applicable rules of practice provide that
a notice of disagreement must be written and must be
submitted by the claimant within one year from the date that
the agency mails notice of a determination to the veteran.
The evidence does not show that this requirement was met in
this case. The earliest written statement of disagreement
from the veteran was his statement received on November 12,
1999. In summary, we conclude that a notice of disagreement
with the September 1998 RO decision assigning an effective
date of January 27, 1998, for the grant of a permanent and
total disability rating for pension purposes, was not timely
filed. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302(a),
20.305(b).
ORDER
A notice of disagreement with the September 1998 RO decision
denying an effective date prior to January 27, 1998, for the
grant of a permanent and total disability rating for pension
purposes, was not timely filed. The appeal is denied.
R. F. WILLIAMS
Member, Board of Veterans' Appeals